Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

Quality of Expert Testimony Questioned in Death Penalty Appeal

The importance of expert witnesses in constitutional challenges to execution by lethal injection was highlighted by an ExpertPages blog post last year about an anesthesiologist who decided he would no longer testify for states in defense of their death penalty procedures. The anesthesiologist was concerned that his expert testimony would run afoul of the American Board of Anesthesiology’s rule forbidding its members from assisting in the creation of death penalty procedures.

The issue of expert testimony in death penalty cases recently resurfaced when the Supreme Court heard oral arguments in an Eighth Amendment challenge to Oklahoma’s procedure for administering lethal injections. One of the controversies in that case surrounds the quality of the expert testimony that Oklahoma relied upon.

The Controversy Before the Court

Constitutional challenges to lethal injections are based on the claim that the “drug cocktail” typically used by executioners violates the Eighth Amendment’s prohibition of “cruel and unusual” punishments. Experts retained by defense lawyers typically testify that the drugs fail to render the condemned prisoner unconscious, causing the prisoner to suffer severe pain before the onset of death.

Most states that execute prisoners by lethal injection use three drugs: an anesthetic that is supposed to render the prisoner unconscious, a paralytic drug, and a drug that stops the heart. Drug companies that manufacture the two anesthetics commonly used in executions have stopped supplying them to state governments, primarily because those drugs are manufactured in countries that object to the death penalty.

Five states, including Oklahoma, decided to substitute a drug called midazolam as the anesthetic in the three drug protocol. Lawyers for Oklahoma’s death row inmates produced evidence that prisoners who were given midazolam during their executions experienced excruciating pain before they died, although they were unable to speak due to the paralytic.

A dozen pharmacology professors, lending their expertise as “friends of the court,” expressed the opinion that midazolam is not an appropriate substitute for the anesthetics that were used in earlier procedures. A key section of the brief they filed with the Supreme Court is captioned “Midazolam is Incapable of Rendering an Individual Unconscious.”

Oklahoma’s Expert Witness

Oklahoma’s expert witness, Dr. Roswell Lee Evans, testified in earlier court proceedings that inmates who received a sufficient dose of midazolam would be anesthetized. In his words, within two to five minutes after the administration of midazolam, “I doubt very seriously if any pain would be felt.” He acknowledged that a prisoner would likely feel severe pain from the administration of the second and third drugs if midazolam did not render the prisoner unconscious.

Dr. Evans is a board certified pharmacist. He is also the dean of the Harrison School of Pharmacy at Auburn University. While Dr. Evans’ credentials are impressive, he testified that he has no personal experience with the administration of midazolam to patients. He based his opinions on an extrapolation of the effects that might be produced by higher doses of midazolam than those that are given for therapeutic purposes.

The pharmacology professors who filed the Supreme Court brief disagree with Dr. Evans. They contend that midazolam has a “ceiling effect” and that higher doses do not increase the drug’s potency. All of the experts agree that, given its potential lethality, high doses of midazolam have never been tested on humans in a clinical experiment.

Dr. Evans’ Reliance on Drugs.com

It is common for experts to disagree. More problematic is that Dr. Evans appears to have based the opinions he expressed in his expert report largely on information he gleaned from Drugs.com, a consumer website that warns readers not to rely on its content as medical advice.

One of the pharmacology professors who joined the Supreme Court brief criticized Dr. Evans for relying on a consumer website instead of scientific studies. She suggests that experts should rely on primary literature, not on simplified explanations that appear on consumer websites.

Dr. Evans’ reliance on Drugs.com did not escape the notice of Supreme Court Justice Sonia Sotomayor. In an opinion dissenting from a refusal to stay an execution earlier this year, Justice Sotomayor called attention to Dr. Evans’ reliance on Drugs.com rather than scientific studies to support his opinion. Justice Sotomayor wrote that she was “deeply troubled by this evidence.”

While Dr. Evans defended his report on the ground that Drugs.com includes “outstanding references,” experts who rely on “dumbed down” explanatory materials rather than primary sources risk having their opinions discredited. Perhaps the pool of expert witnesses who are willing to testify in favor of lethal injection methods is running dry, but state governments cannot expect to make a convincing case when they rely on witnesses who rely on consumer websites to support their expert opinions.

Philadelphia Lawyer Held Accountable for Expert’s Violation of Court Order

The importance of good communication between an expert witness and the attorney who hires the expert is illustrated by a sanction of nearly $1 million dollars that a judge in Philadelphia imposed upon an attorney after an expert violated a court order. The controversial ruling has unsettled Philadelphia lawyers who say they should not be held accountable for mistakes made by their expert witnesses.

The Expert’s Violation of the Court’s Order

Insurance defense lawyer Nancy Raynor represented a doctor in a lawsuit alleging that the doctor’s malpractice contributed to a patient’s death. X-rays taken in response to the patient’s complaints of chest pains and shortness of breath revealed a potentially cancerous nodule on the patient’s lung. The patient was not warned about the nodule. Twenty months later, the patient was diagnosed with lung cancer. He died six months after receiving that diagnosis.

Lawyers for the patient’s family obtained an order from the trial judge barring any reference to the patient’s history of smoking. The judge agreed that the question at trial was whether the healthcare providers were negligent in failing to diagnose and disclose a potentially cancerous condition, regardless of how the cancer might have originated.

At trial, Raynor called a physician as an expert witness for the defense. During the physician’s testimony, Raynor asked whether the deceased patient “had any cardiac risk factors.” The physician answered that the patient was hypertensive and a smoker.

The jury ruled in favor of the patient’s family but returned a verdict of $190,000, an amount that barely covered the expense of the plaintiffs’ expert witnesses. The judge then granted a motion for a new trial, citing the prejudicial nature of the defense expert’s testimony and the violation of the court’s order. The judge ordered Raynor to pay $170,000 in costs incurred by the patient’s family in bringing the case to trial. The judge also ordered Raynor to pay more than $775,000 in legal fees to the two firms that represented the plaintiffs.

At a second trial, the patient’s family obtained a verdict of $1.9 million. That fact did not appease the trial judge, who rejected Raynor’s motion to reconsider his ruling. An appellate court is now considering the appropriateness of the sanction.

The Duty to Communicate with Witnesses

When the court enters an order that prohibits witnesses from giving certain testimony or mentioning specified facts, lawyers have a duty to caution their witnesses about the order. As Raynor’s case makes clear, lawyers should take pains to emphasize the importance of tailoring expert witness testimony to comply with the court’s order.

Raynor told the court that she advised the expert of the court’s order and argued that she should not be held responsible for the expert’s mistake. When questioned at the sanctions hearing, the expert testified that he “could not recall” whether he had been told not to mention the patient’s smoking habits but conceded that he “possibly” was told not to do so. Raynor called two witnesses to support her testimony that she warned all her trial witnesses about the court’s order. The judge rejected that testimony in imposing sanctions.

After a midlevel appellate court sent the case back to the trial judge for a new sanctions hearing, Raynor called a third witness who confirmed hearing her caution her witnesses not to testify about the patient’s smoking habit. The judge said that the witness’ testimony was not credible, in part because it was inconsistent with testimony given by Raynor’s other witnesses. The judge accused Raynor of deliberately violating the order to influence the outcome of the trial.

Concerns Raised About the Judge’s Ruling

Philadelphia lawyers have expressed concern about the judge’s ruling. If it is upheld on appeal, Raynor says she will be forced to close her practice and might lose her home. Lawyers worry that the case sets a precedent for imposing huge sanctions upon attorneys when their expert witnesses inadvertently violate court orders.

Dividing blame between the expert and the lawyer is at the heart of the judge’s sanction order. However that issue is ultimately resolved on appeal, the case sends a message to lawyers and to expert witnesses about the importance of communication. When a judge enters an order that limits or otherwise affects the testimony to be given by an expert, lawyers must take care to ensure that the expert is advised of the order and understands its meaning and importance.

Lawyers who want to minimize the risk that they will be held accountable for an expert’s violation of a court order might want to give the expert written notice of the order. A letter instructing the expert not to give prohibited testimony, reinforced with an oral warning immediately before the expert testifies, could save both the lawyer and the expert from the embarrassment (and financial trauma) that follows the violation of a court order.

How an Expert Explains the Psychology of Killers

Psychologists can play important roles in criminal cases for both the defense and prosecution. During trials, they may focus on issues of eyewitness identification, diminished capacity, or the susceptibility of child witnesses to outside influence. Before trial, they establish or refute a defendant’s competency to stand trial. At sentencing, they educate the judge about the defendant’s cognitive ability, mental impairments, family history, social environment, treatment needs, and potential for rehabilitation. Psychologists who provide mitigating evidence during the death penalty phases of murder trials often make the difference between life and death.

Explaining the Choice to Kill

In his recently published book, Listening to Killers, Dr. James Garbarino recounts the lessons he learned from his twenty years of testifying as an expert witness in murder cases. His book exemplifies the kind of testimony that psychologists provide in criminal cases.

Chapter one (available as a pdf online) explores whether and why murderers choose to kill. Mixing case studies from his own experience with current research findings, Dr. Garbarino explains how the choices that murderers make are shaped by a variety of factors, including brain functions, cultural values, panic, personality disorders, traumatic experiences, fear, misperceptions, addiction, curiosity, peer pressure, and the instinct for self-preservation.

Psychologists often examine the difference between choice and compulsion. They join neuroscientists in asking whether the concept of free will (upon which the criminal justice system’s philosophy of punishment is based) is just an illusion. Behavioral choices that many people perceive as evidence of moral weakness or “bad character” may not be choices at all, in the sense that choices can be driven by unconscious motivations. If the decision to murder is the product of psychological and environmental factors that the killer did not choose, is the killer really choosing to kill?

The Science of Decision-Making

Psychologists are not called upon to justify criminal behavior, but to make it comprehensible. Their goal is to help judges or juries see the defendant as a human being, not as a monster. They focus on “the science of decision-making,” basing testimony on the neuroscience community’s evolving understanding of brain development and its impact on human behavior. They also rely upon studies that have linked murders and violent behavior to damage in parts of the brain that are responsible for moral calculations or empathy.

At the same time, experts caution against attributing criminal or violent behavior solely to underdeveloped or damaged brains. Research suggests that murderers have a “genetic vulnerability” to brain development that fails to control antisocial behavior. Despite that vulnerability, brains may develop normally when children are raised in a safe and nurturing environment. On the other hand, abuse or trauma may act as triggers that prevent vulnerable brains from developing the social controls and empathy that cause most people to behave nonviolently.

Differing Approaches to Expert Testimony

The extent to which psychologists are permitted to testify in criminal cases varies from state to state and from context to context. For example, the admissibility of a psychologist’s pretrial testimony on the issue of competency to stand trial is relatively uncontroversial. Mitigation testimony during sentencing is also generally admissible and, in the death penalty phase of a trial, cannot generally be precluded and may even be required.

Judges typically exercise considerable discretion over the admissibility of a psychologist’s defense testimony in the guilt phase of a murder trial. Some states have adopted evidentiary standards that preclude experts from offering an opinion as to whether a defendant was capable of forming an intent to kill. Judges are even less likely to allow a psychologist to testify that a defendant did not have an intent to kill.

State evidentiary standards also differ as to whether (for example) a “battered woman’s defense” can be raised to explain why an abuse victim killed her abuser. Similarly, states have taken inconsistent approaches to diminished capacity defenses. When they are allowed to testify, however, there is little doubt that psychologists and behavioral experts can be of enormous assistance to a criminal defendant who is charged with murder.